Press Release: ConCourt grants permit extensions for asylum seekers under review
Published by Legal Resources Centre 24 April 2018
For Immediate Release: 24 April 2018
Today, 24 April 2018, the Constitutional Court handed down judgment which provides protection to asylum seekers who currently have their application for refugee status under review in the Western Cape High Court. Twenty-nine asylum seekers, represented by the Legal Resources Centre, challenged the refusal of the Acting Manager of the Cape Town Refugee Reception Office (CTRRO) to renew their Section 22 asylum seeker permits pending the outcome of individual high court reviews of each of their rejected asylum applications.
The case rested on the issue of what the RRO must lawfully undertake in terms of granting an extension on these permits. If asylum seekers in such cases are not granted extensions of their permits, this leaves them at risk of arrest and deportation, denying them the ability to effectively exercise their right to judicial review.
The case was on appeal from the Supreme Court of Appeal. Today, in Saidi v Minister of Home Affairs, the Constitutional Court held that the Constitutional interpretation of sections 22(1) and 22(3) of the Refugees Act is that the word “may” in section 22(3) does not confer a discretion, but rather empowers and enjoins the Refugee Reception Office to extend asylum seeker permits until the finalisation of a judicial review.
The judgment emphasised the need for the Constitutional Court to interpret the statutory provisions in accordance with the purpose of the Refugees Act, which is to give effect to international refugee law. In particular, the principle of non-refoulement states that a refugee must not be returned to their country of origin if they face persecution. The judgment reasoned that an interpretation refusing to extend permits during judicial review would be at odds with the principle of non-refoulement since asylum seekers would lose their entitlement to remain in South Africa lawfully and be at risk of deportation and return to the very persecution from which they were forced to escape.
The Legal Resources Centre welcomes the Constitutional Court’s judgment as another landmark one which emphasises the need to protect vulnerable asylum seekers. The emphasis placed on international refugee law and the need for an interpretation which best affords asylum seekers protection is noteworthy. The judgment also highlighted section 39(2) of the Constitution which requires that courts interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights.
We are pleased that the court embraced the commitment to transformative constitutionalism – interpretation and development of the law in line with the constitutional values of freedom, equality and dignity – for all those who reside within the Republic of South Africa.